SOAS Research Online

Abstract

This thesis is about the decision-making habits of the Indian Judge and in particular the judges who served in the Supreme Court of India from 1950 to 1971. The approach adopted has been to consider the predicament of the lawyer and the judge in India in the last two decades, sketch the background of the Indian Supreme Court judges (Chapter I) and briefly survey the manner in which Indian judges have interpreted and adapted the juristic techniques inherited from the British to suit Indian needs (Chapter II). The question posed in these earlier chapters is : "Do Indian judges - the Supreme Court being used as a model - deciding complicated issues of law and fact, rely solely on their western training or do they also receive theoretical inspiration, instinctive or otherwise, from indigenous sources ?" The technique followed has been not to try to analyse each one of the five thousand odd reported cases decided by the Supreme Court since 1950, but to select certain branches of Public and Personal law, attempt to show the techniques used as well as the sources relied on by the judges and contrast their actual performance against the options and possibilities open to the Court. The areas concentrated on are : the constitutional rights to property (Chapter III); preventive detention and public order (Chapter IV); the Hindu joint family (Chapter V); the pious obligation of a Hindu son to pay his father's debts, the legal incidences attendant to the adoption of a Hindu son, and the property rights of Hindu Women (Chapter VI); "Obscenity", Contempt of Court, Official Secrecy, cow slaughter and religious rights and certain aspects of labour law (Chapter VII). The last Chapter attempts to answer the problem posed at the beginning of the thesis.